DAITARI MOHAPATRA Vs. BRUNDABAN MATIA

JUDGEMENT

(1.) THIS is a defendant's second appeal against the appellate judgment of the district Judge of Cuttack reversing the judgment of the III Additional Munsif cuttack and decreeing the plaintiff's suit for recovery of a certain sum of money from the defendant.

(2.) THE plaintiff alleged that there was a partnership between him and the defendant for the purpose of doing repair work to Khaira bridge in 1944 and that the wirk was completed in due course, on the 5th June 1944. The execution of the repair work was entrusted to the defendant and the plain- tiff's function as a partner was to contribute certain sums of money and also to maintain accounts. The plaintiff further alleged that though the work was completed on the 5th June 1944 the defendant evaded paying the net sum due to him on some pretext or other. He therefore brought the present suit, claiming a sum of Rs. 689-9-6. A schedule was attached to the plaint giving a complete statement of the accounts of the partnership usiness showing the aforesaid sum of Rs. 689-9-6 as due to the plaintiff. The defendant raised all sorts of pleas which need not be discussed in detail at present. The learned Munsif who tried the suit in the first instance agreed with the plaintiff's claim in respect of all the essential points and decreed the suit for Rs. 611-7-3, An appeal against his decision was first heard by Sri A. R. Guru the then additional District Judge of Cuttack who, while affirming the finding of the learned munsif on all the essential facts of the case, remanded the suit for re-hearing after framing a new issue which was to the following effect: "is the firm a registered one and is the suit maintainable in view of the provisions of Section 69 of the Partnership Act?" after remand the suit was heard by the 3rd Additional Munsif Cuttack and he held that as the partnership was not registered, the suit was not maintainable in view of the bar imposed by Section 69 (1) of the Partnership Act; and hence he dismissed the suit. An appeal was taken before the District Judge (M. A. No. 123 of 1949) who relying on Sheo Dutt v. Pushi Ram, AIR 1947 All 229 held that the suit was maintainable as it would come within the scope of Clause (a) of Subsection (3) of Section 69 of the Partnership Act. As regards the other questions, he thought that in view of the previous decision of the Additional District Judge affirming the findings of the trial court it was not open to him to re-examine those questions. Hence he decreed the suit in terms of the decree passed by the learned Munsil in the first instance.

(3.) IN this second appeal two points of law were canvassed: